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Judgment
This appeal is at the instance of appellants - original accused, in an Appeal under Section 374 of the Code of Criminal Procedure and is directed against an judgment and order dated 30.10.2004 passed by the learned Additional Sessions Judge, Fast Track Court No.4, Kutch Bhuj in Sessions Case No.10 of 2004, by which learned Sessions Judge has convicted the appellant No.1 - accused and has ordered to undergo sentence of 5 years rigorous imprisonment and to pay a fine of Rs.2000/-, in default, to further undergo simple imprisonment for three months, for the offence punishable under Sections 498(A), 306 and 114 of the Indian Penal Code. Learned Sessions Judge has further ordered to convict and sentence the appellant No.2 - accused to undergo sentence of 3 years rigorous imprisonment and to pay a fine of Rs.2000/-, in default, to further undergo simple imprisonment for three months, for the offence punishable under Sections 498(A), 306 and 114 of the Indian Penal Code.
Brief case of the prosecution is that the deceased Sarojba got married with accused No.3 - Pravinsinh (acquitted by the learned Sessions Judge) before 15 months. Since then the deceased was staying with the said accused on first floor and the appellants were staying at ground floor. It is the case of the prosecution that the deceased was harassed by the appellants by taunting that she had brought less dowry and thereby she was mentally and physically tortured. It is also the case of the prosecution that the husband of the deceased demanded motorcycle and as the father of the deceased was not in a position to fulfill that demand of motorcycle, divorce was asked for. Due to such reason, on 20.3.2003, she committed suicide by pouring kerosene on herself and set her at fire. Thereafter, the deceased was taken to the hospital as
she received burns injuries and thereafter, the deceased succumbed to the injuries. The police registered the offence and arrested the accused and after due investigation charge- sheeted the accused for the aforesaid offences. The accused pleaded not guilty to the charge and claimed to be tried.
The prosecution has also produced documentary evidence on record, which are as under:
Sr. No. Name of the Document Exh.
1 P.M. Note 7
2 certificate showing the reason of the deceased 8
3 Medical Certificate 10
4 Police Yadi 12
5 Dying Declaration 23
6 Panchnama - Scene of Offence 19
7 Inquest Panchnama 22
8 FIR 25
9 Janvajog Entry made at Mandvi Police Station 28
10 Yadi issued to FSL for muddamal analysis 29
11 Receipt issued by FSL 30
12 Forwarding letter for analysis of Muddamal 31
13 FSL report 32
In order to bring home the charges against the accused persons, prosecution has examined following witnesses
Sr. No.Name of the witness Exh.
1 P.W.1 Mohmad Iqbal Ajijbhai Khatri 6
2 P.W.2 Mohmad Hasan Daud Khatri 9
3 P.W.3 Dayalji Naran Parmar 11
4 P.W.4 Hiraba Khengarji Rathod 14
5 P.W.5Khengarji Navghanji Rathod 15
6 P.W.6 Nandubha Nanubha Chudasama 16
7 P.W.7 Bharat Rasiklal Shah 17
8 P.W.8 Ajay Kantilal Harsh 18
9 P.W.9 Bhura Raysi Koli 21
10 P.W.10 Laghu Mangal Maheshwari 23
11 P.W.11 PSO Jayendrasinh Dipsinhjji Jadeja 24
12 P.W.12 Dr. Madhavkrushna Lohra 26
13 P.W.13 I.O. Dalabhai Rajabhai Kalma 27
Thereafter, after filing closing purshis by the prosecution, further statements of accused persons under Section 313 of the Code of Criminal Procedure, 1973 were recorded. The accused persons have denied the case of the prosecution and submitted that they are innocent persons.
At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Sessions Judge vide impugned Judgment, convicted and sentenced the accused as stated above.
Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 30.10.2004 rendered by the learned Additional Sessions Judge, Fast Track Court No.4, Bhuj - Kutch in Sessions Case No.10 of 2004, the appellant- accused have preferred the present appeal before this Court.
Learned senior advocate Mr. K.B. Anandjiwala appearing for the appellants stated that the judgment and order passed by the learned trial Judge is contrary to law and evidence on record. He further stated that the prosecution failed to prove its case beyond reasonable doubt. He further submitted that when the deceased was being taken to the Government Hospital at Mandvi by her mother Hiraba, mother-in-law and husband, the Doctor asked her history regarding injury and she had categorically stated that she received burns injuries accidentlly while preparing tea. He read the worthy which contains aforesaid statement of the deceased. He also submitted that after examining the deceased, the deceased was sent through Ambulance to Bhuj General Hospital. He has drawn attention to the P.W.4 Hiraba stated in her cross- examination that her daughter had received burn injuries because of harassment and torture her daughter on the issue of dowry. But said witness has not stated anything about the nature of harassment and torture and as to who were causing such harassment and torture. He submitted that the history of accidental burns is sufficiently corroborated by the circumstantial evidence and same is established from the Panchnama. It is submitted by learned senior advocate that in the Panchnama, one stove primus was found there containing about 1 Ltr. of kerosene in it, there is cover of stove, one burner is lying in the south-east corner as well as the grill and chipiya of stove were found lying there. He further submitted that the dying declaration creates great suspicious and time of recording such dying declaration is doubtful. He further submitted that first information was received by the police was in respect of accidental injury. He has drawn attention to the evidence of Executive Magistrate, who recorded dying declaration, wherein this witness stated in his evidence that upon receipt of the Yadi, he went to the hospital and contacted the Doctor for recording dying declaration and in his cross- examination, this witness admitted that he went to the Hospital without Yadi because he was informed on telephone by the officer on duty at Hospital chowky. This witness took thumb impression of the deceased after completing the dying declaration. This witness had no knowledge about name of Doctor, who made endorsement about the consciousness of the deceased while recording dying declaration. This witness also asked only one question for rec dying ording dying declaration and thereafter, no question was asked by him. From the bare perusal of the dying declaration, it clearly comes out that not attempt was made to ascertain as to whether the deceased was in fit state of mind. Learned senior advocate further stated that accord dying ing to the evidence of Doctor, the deceased sustained 2nd, 3rd and 4th degree burns all over the body except the palmer aspect of hand and feet and she sustained burns on hand and feet, lips, chicks and on neck. Even the evidence of Dr. Khatri transpires that the face of the deceased was burnt. Then in this position, how the deceased gave her dying declaration, which also creates dying doubt and same is not explained by the prosecution and how the deceased did speak about the incident is a question. Therefore, the evidence of the Doctor as well as Executive Magistrate become doubtful and they are not corroborated with each other. Therefore, no reliance is required to be placed on such type of dying declaration because the deceased sustained burns on over her body including face, lip, neck etc. and therefore, in such physical condition, the deceased gave her dying declaration, is not at all believable. He read the P.M. Note and submitted that the reason for death of the deceased is shown as cardio respiratory failure. Therefore, in this view of the matter, it can be said that the deceased had not given dying declaration in fit state of mind and therefore, same is not reliable and trustworthy. He also stated that there are contradictions between the evidence of Hiraba P.W. 4 and Nandhubhai P.W.6. He also submitted that from the evidence of Panchas and other witnesses, the prosecution could not produce corroborative piece of evidence in support of the prosecution case. He read the evidence of Investigating Officer and submitted that the investigation is bias and concocted. He further submitted that considering overall evidence produced on record, it appears that the deceased received burn injuries while she was preparing tea and therefore, the allegations levelled against the appellants cannot be said to be established by the prosecution. He lastly prayed to allow present Appeal by quashing and setting aside the impugned judgment and order. They are not corroborated with each other. Therefore, no reliance is required to be placed on such type of dying declaration because the deceased sustained burns on over her body including face, lip, neck etc. and therefore, in such physical condition, the deceased gave her dying declaration, is not at all be
Learned APP Mr. N.J. Shah for the State supported the impugned judgment and order of conviction and sentence passed by the trial Court. He read t dying he oral evidence of the witnesses and submitted that the prosecution has established the case against the accused beyond reasonable doubt. He further submitted that the deceased herself gave her dying declaration before the Executive Magistrate and at that time she was in conscious position and therefore, it cannot be said that the said dying declaration is not reliable and trustworthy. and therefore, the appeal is required to be dismissed by confirming the impugned dying judgment and order of conviction and sentence imposed by the trial Court. He read the evidence of P.W.1 Dr. Khatri and P.W.2 Dr. Lahora, who examined the physical condition of the deceased after the incident and they have explained physical condition of the deceased prior to recording of dying dying declaration. He also submitted that the Doctor made endorsement about consciousness of the deceased and thereafter, the dying declaration was recorded. He submitted that the present appellants harassed the deceased on the issue dowry and therefore, the deceased committed suicide and hence, the appellants instigated the deceased to commit suicide. He read the evidence of P.W.4 Hiraba examined at Exhibit 14, wherein this witness stated that the appellants caused harassment upon the deceased and same is also admitted by this witness in her cross-examination. He read the FSL report produced at Exhibit 32, which shows that the deceased sustained burn injuries and died. He also submitted that looking to even documentary evidence like complaint, inquest panchnama etc., the prosecution has established its case beyond reasonable doubt and therefore, present appeal is required to be dismissed by confirming the judgment and order passed by the learned Sessions Judge.
Perused the records of the case and considered the submissions made by the learned advocates for the respective parties. As per the complaint, the deceased Sarojba got married with accused No.3 - Pravinsinh (acquitted by the learned Sessions Judge) before 15 months. Since then the deceased was staying with the said accused on first floor and the appellants were staying at ground floor. The deceased was harassed by the appellants by taunting that she had brought less dowry and thereby she was mentally and physically tortured. It is also the case of the prosecution that the husband of the deceased demanded motorcycle and as the father of the deceased was not in a position to fulfill that demand of motorcycle, divorce was asked for. On 20.3.2003, she committed suicide by pouring kerosene on herself and set her at fire and then the deceased succumbed to the injuries. When the deceased was admitted in the hospital, the Executive Magistrate recorded her dying declaration on 20.10.2003 at
about 21:30 to 2135 Hrs. and same is produced at Exhibit 13. In the said dying declaration, it is stated that the present appellants who are the mother-in-law and sister-in-laws (Jethani) were causing her mental and physical harassment and therefore, the deceased was constrained to commit suicide. Therefore, it is established that the appellants were harassing the deceased on the issue of dowry. From the evidence of P.W.4 - Hiraba, mother of the deceased, it appears that the deceased was harassed by the appellants and on the day of incident i.e. on 20.3.2003, the appellants quarreled with the deceased and said fact was informed by the deceased on telephone to this witness. The same fact have been admitted by this witness in her cross-examination. Said version has been supported by P.W.5 Khengarji Navghanji examined at Exhibit
It also appears that the evidence of P.W.6 Nanduba reflects that the telephone call made by the deceased to the P.W.4 Hiraba about the quarrel by the appellant with the deceased. The said witness also went to the house of the deceased on the day of incident. Even the evidence of P.W.7 Bharat Shah is supporting the version of dowry.
Now, looking to the evidence of P.W.12 Dr. Madhavkrushna Lohra, examined at Exhibit 26, it appears that the said witness made endorsement about the consciousness of the deceased before recording dying declaration after satisfactory examining the deceased. The evidence of Dr. Khatri examined at Exhibit 6 clearly reflects that cardio respiratory failure happens due to burn injury and / or same may not be happened due to said injuries. But in this case, it is admitted fact that the deceased died due to burn injuries and therefore, it is believable that due to burn injuries, the cardio respiratory failure happened and therefore, deceased died. This Court has also perused other evidence of the witnesses examined by the prosecution along with the documentary evidence like panchnama, inquest panchnama, P.M. Note, FSL report, complaint, dying declaration etc. and it can be said that the documentary evidence are corroborated with the evidence of the witnesses examined by the prosecution.
No doubt, learned senior advocate Mr. K.B. Anandjiwala vehemently submitted that the dying declaration creates doubt to discard the facts of the prosecution case. But this Court has minutely perused the contents of the dying declaration. It is laid down by the Hon''ble Apex Court in so many cases that the general principle on which this species of evidence is admitted is that they are declarations made in extremely, when the party is at the point of death when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most power considerations to speak the truth; a situation so solemn and so lawful is considered by the law as as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice. The principle on which dying declaration is admitted in evidence is indicated in legal maxim "nemo moriturus preosumitur mentiri, a man will not meet his maker with a lie in his mouth."
Even this Court has perused the provisions of Section 32 (1) of the Evidence Act, which relates to the statement made by a person before his death. Two categories of statements are
made admissible in evidence and further made them as substantive evidence. They are:(1) His statmeent as to cause of his death; (2) His statement as to any of the circumstances of transaction, which resulted int his death. The second category can envelop a far wider amplitude than the first category. The words "statement as to any of the circumstances" are by themselves capable of expanding the width and contours of the scope of admissibility. When the word "circumstances" is linked to "transaction which resulted in his death", the sub-section casts the net in a very wide dimension. Anything which has a nexus with his death, proximate or distant, direct or indirect, can also fall within the purview of the sub-section. As the possibility of getting the maker of the statements in flash and blood has been closed once and for all, the endeavour should be how to include the statement of a dead person within the sweep of the sub- section and not how to exclude it therefrom. Admissibility is the first step and once it is admitted the Court has to consider how far it is reliable. Once that test of reliability is found positive, the Court has to consider the utility of that statement in the particular case. This Court has found from the dying declaration that the same was made within time and in her dying declaration, she has clearly explained how she committed suicide. This Court has also found that the contents of the dying declaration is fully justified by the trial Court and therefore, this Court is of the opinion that the trial Court has rightly convicted and sentenced the appellant - accused and therefore, this Court is in total agreement with the observations made by the trial Court in connection of the trustworthiness of the dying declaration. Even this Court has carefully scrutinized the contents of the dying declaration and
it is found that same is free from any attempt to prompt the deceased to make such statement coherent and consistent. There is no legal impediment in founding connection.
Learned senior advocate Mr. K.B. Anandjiwala has relied upon the various decisions of this Court, but they are not helpful to the present case because here in this case, the dying declaration is proved by circumstantial evidence. The deceased complained about harassment on the part of the appellants to her mother and on the date of incident, the quarrel took place and the same has been supported by P.W.6 so far as quarrel took place between the deceased and appellants is concerned. In these circumstances, this Court has no reason to believe the case of the prosecution. Hence, present appeal is required to be dismissed.
In the result, the appeal is dismissed. The impugned Judgment and order dated 30.10.2004 rendered by the learned Additional Sessions Judge, Fast Track Court No.4, Kutch Bhuj, in Sessions Case No.10 of 2004, convicting and sentencing the appellants is hereby confirmed.
The appellants are directed to surrender before the Jail Authority within a period of four weeks from today.
Bail Bonds stands cancelled. Record and Proceedings be sent back to the trial Court concerned forthwith.